The defendant, a Mexican citizen, pleaded guilty to unlawful reentry into the United States after deportation and was sentenced to fifty-seven months of incarceration. He sought a remand for the district judge to consider whether to impose a lower sentence based on the disparities created by the existence of "fast-track" early-disposition programs for illegal-reentry cases in other jurisdictions. He also argued that the district judge’s reliance on incorrect information about the prevalence of fast-track programs rendered the sentence procedurally unreasonable. Because the defendant was sentenced before Kimbrough v. United States, 552 U.S. 85 (2007), and because Kimbrough permits district court judges to impose a variance based on disagreement with the policy underlying a given guideline (e.g., the fast-track disparity), the appellate court vacated the sentence and remanded the case for resentencing.
Two arguments for relief from the sentence, both based on procedural unreasonableness: 1) the district judge mistakenly believed that he could not consider the disparity created by the existence of fast-track programs in some jurisdictions and not others; and 2) in rejecting the disparity argument, the district court relied on erroneous information about which districts employed fast-track programs.
Defendant did not point out the second error at sentencing, but because the district judge did not ask the Bostic question (he asked defense counsel only if there was "anything else"), plain-error review did not apply. Review was for reasonableness. Court looked to United States v. Gapinski, 561 F.3d 467, 473–74 (6th Cir. 2009), which held that, under United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), the question of "anything else for the record?" was insufficient to trigger plain-error review when objections were not made below.
The Court found:
"To the extent that Gaines and our other cases suggest that sentencing judges may not reduce sentences based on the fast-track disparity, we agree with Camacho-Arellano that any such rule does not survive the Supreme Court’s decision in Kimbrough..."
This published decision seems to put the issue of a variance based upon a disparity due to fast-track programs elsewhere in the country into every illegal re-entry case.
A policy disagreement, even with Congress, not just the USSC, is grounds for a variance.